Laborers Local 81 (Kenny Construction Co.)

National Labor Relations Board - Board Decisions

Apr 17, 2003

338 N.L.R.B. 977 (N.L.R.B. 2003)

LABORERS LOCAL 81 (KENNY CONSTRUCTION CO.) 977
Laborers International Union of North America, Lo-
cal 81, AFL–CIO and Kenny Construction Com-
pany and International Association of Bridge,
Structural, Ornamental and Reinforcing
Ironworkers, Local 395, AFL–CIO. Case 13–
CD–629–1
April 17, 2003
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. The
charge was filed on December 11, 2001, by Kenny Con-
struction Company (the Employer). The charge alleges
that the Respondent, Laborers International Union of
North America, Local 81, AFL–CIO (Laborers), violated
Section 8(b)(4)(D) of the Act by engaging in proscribed
activity with an object of forcing the Employer to assign
certain work to employees it represents rather than to
employees represented by the International Association
of Bridge, Structural, Ornamental and Reinforcing Iron-
workers, Local 395, AFL–CIO (Ironworkers). The hear-
ing was held on January 3, 2002, before Hearing Officer
Elizabeth Galliano.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is an Illinois
company engaged in the construction of underground
tunnels, shafts, and systems used for flood control and
for access to fresh water. Within the past calendar year,
a representative period, it purchased and/or received
goods and materials valued in excess of $50,000 indi-
rectly from points located outside the State of Indiana.
The parties further stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Laborers and
the Ironworkers are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a general contractor engaged in the
construction of underground tunnels and shafts in Wis-
consin, Illinois, and Indiana. In February 2001,1 the Em-

1 Unless otherwise specified, all dates are in 2001.
ployer began work associated with the shaft and tunnel
construction at the Borman Park Tunnel Project for Indi-
ana American Water Company in Gary, Indiana. On
February 1, during the prejob conference, the Employer
orally assigned the steel rod and iron mesh work at the
project to its employees, who are represented by the La-
borers. This assignment was subsequently confirmed in
writing. In March, Ironworkers’ business agent, James
Blevins approached the Employer’s project manager,
Paul McDermott at the jobsite. Blevins questioned the
assignment of the work to employees represented by the
Laborers and informed McDermott that the steel rod and
wire mesh work on the project belonged to employees
represented by the Ironworkers. Blevins showed
McDermott a copy of the Ironworkers’ collective-
bargaining agreement, which the Employer had signed
when it utilized some employees represented by the
Ironworkers on a bridge project in the early 1980s and
which was still in effect. The Employer did not reassign
the work. By letter dated April 5, the Ironworkers noti-
fied the Employer that it was filing a grievance over the
work assignment with the Joint Trade Board.
On April 20, the Joint Trade Board awarded the work
to the Ironworkers. The Employer appealed the Joint
Trade Board’s award to Federal court and the Ironwork-
ers counter-claimed for enforcement. By letter dated
October 26, the Laborers threatened the Employer with
action, including striking and picketing, if the work was
reassigned to the Ironworkers. At the time of the hear-
ing, employees represented by the Laborers had com-
pleted approximately 90 percent of the steel rod and iron
mesh work on the Borman Park Tunnel Project.
B. Work in Dispute
At the hearing, the parties agreed to a modification of
the work in dispute from that described in the original
notice of hearing. Pursuant to that agreement, the work
in dispute consists of the handling, placement, and instal-
lation of reinforcing steel rods and wire mesh for the
construction of the tunnel and shaft and facilities associ-
ated with shaft and tunnel construction at the Borman
Park Tunnel Project for Indiana American Water Com-
pany in Gary, Indiana.
C. Contentions of the Parties
The Ironworkers contend that there is no reasonable
cause to believe that Section 8(b)(4)(D) has been violated
and that the notice of hearing should be quashed. The
Ironworkers argues that, prior to the hearing in this case,
it effectively disclaimed any interest in the remaining
338 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
disputed work.2 The Ironworkers further contends that
there are no competing claims for the disputed work be-
cause, under the Board’s decision in Capitol Drilling,3 it
did not make a claim for the disputed work when it filed
a grievance to enforce its contract with the Employer. In
the alternative, should the Board find that a jurisdictional
dispute exists, the Ironworkers argue that the disputed
work should be awarded to the employees it represents,
based on its collective-bargaining agreement with the
Employer, area and industry practice, and relative skills.
The Employer argues that there is reasonable cause to
believe that the Laborers violated Section 8(b)(4)(D) of
the Act since it is undisputed that the Laborers threatened
to strike and picket if the disputed work was reassigned.
The Employer further argues that the Ironworkers’ dis-
claimer is ineffective and designed to avoid an authorita-
tive ruling on the merits of the dispute. As to the merits
of the dispute, the Employer and the Laborers contend
that the work in dispute should be assigned to employees
represented by the Laborers, based on the collective-
bargaining agreement between the Employer and the
Laborers, the Employer’s preference and past practice,
area and industry practice, relative skills, and economy
and efficiency of operations.
D. Applicability of the Statute
Before the National Labor Relations Board may pro-
ceed with a determination of the dispute pursuant to Sec-
tion 10(k) it must be satisfied that reasonable cause exists
to believe that Section 8(b)(4)(D) has been violated.4
This determination requires a finding that there is rea-
sonable cause to believe (1) that a party has used pro-
scribed means to enforce its claims to the work in dispute
and (2) that there are competing claims to the disputed
work between rival groups of employees.5 The first re-
quirement is satisfied in this case because it is undisputed
that the Laborers threatened to strike and picket the Em-
ployer. Contrary to the Ironworkers’ contention, we find
that the second requirement is also met and that the
Board’s decision in Capitol Drilling, supra is distin-
guishable.
Capitol Drilling, involved a union’s grievance against
a general contractor alone, and not against the subcon-
tractor who actually had the authority to assign the dis-
puted work. Absent a direct claim (grievance) against

2 At the start of the hearing, the Ironworkers presented a letter dis-
claiming interest in all future disputed work, and moved that the notice
of hearing be quashed. The hearing officer accepted the document, but
denied the Ironworkers’ motion, reserving the issue for the Board.
3 Laborers (Capitol Drilling Supplies), 318 NLRB 809 (1995).
4 The parties stipulated that there is no agreed-upon method for a
voluntary settlement of their dispute.
5 E.g., Carpenters Local 275, 334 NLRB 422, 423 (2001).
the subcontractor, the Board found no competing claims
for the work and quashed the notice of 10(k) hearing. In
this case, although the Employer is the general contrac-
tor on the Borman Park Tunnel Project, it has assigned
the disputed work to its own employees, and thereby
retains the authority to assign the disputed work. Ac-
cordingly, we have a traditional 10(k) situation in which
two unions have collective-bargaining agreements with
the employer, and each union claims that its contract
covers the disputed work assigned and controlled by the
employer. Consequently, we find that there are compet-
ing claims to the disputed work between rival groups of
employees.
Further, we reject the Ironworkers’ contention that it
has effectively disclaimed the work in dispute. Although
it is well settled that an effective renunciation of work in
dispute resolves a jurisdictional dispute,6 the Board will
refuse to give effect to “hollow disclaimers” interposed
for the purpose of avoiding an authoritative decision on
the merits.7 Here, the Ironworkers’ purported disclaimer
was offered at the start of the hearing when the disputed
work was 90 percent complete. The disclaimer ran only
to future work, and not to the 90 percent already com-
pleted. In addition, the Ironworkers are actively engag-
ing in conduct inconsistent with the disclaimer by seek-
ing to enforce the Joint Trade Board decision ordering
the Employer to reassign the work. For these reasons,
we find the Ironworkers’ disclaimer ineffective.8 We
therefore find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J.A. Jones Con-
struction), 135 NLRB 1402 (1962).
6 Laborers (Georgia-Pacific), 209 NLRB 611, 612 (1974), citing
Laborers Local 935 (C&S Construction Co.), 206 NLRB 807 (1973);
and Sheet Metal Workers Local 55 (Gilbert L. Phillips), 213 NLRB
479, 480–481 (1974).
7 See Mine Workers (Conn-Serv), 299 NLRB 865, 868 (1990); Plas-
terers Local 502 (Advance Terrazo), 272 NLRB 810, 811 (1984); and
Laborers Local 910 (Brockway Glass), 226 NLRB 142, 143 (1976).
8 See Electrical Workers Local 98 (LaSalle University), 324 NLRB
540 (1997); Ironworkers Local 197 (Del Guidice Enterprises), 291
NLRB 1, 2 (1988); Carpenters Local 56 (Jeremiah Sullivan Sons), 269
NLRB 98, 99 (1984); and Plumbers Local 703 (Airco Carbon), 261
NLRB 1122, 1124 (1982).
LABORERS LOCAL 81 (KENNY CONSTRUCTION CO.) 979
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
The Employer has collective-bargaining agreements
with both the Laborers and the Ironworkers. The Labor-
ers’ contract specifically covers performing the steel rod
and wire mesh and tunnel work. Article I of the contract
states:

“7 . . . The loading, unloading, carrying, distribution
and handling of all rods, mesh and materials for use in
reinforcing concrete construction . . . .”
“14 . . . All Labor work, including skilled and semi-
skilled, in connection with . . . tunnel or compressed air
projects.”
“19 . . . all work in connection with shafts, tunnels,
subways and sewers; construction of sewers, shafts,
tunnels, subways and caissons.”

In contrast, the Ironworkers’ contract covers the
“maintenance of reinforcing steel, including wire mesh,
while concrete is still being poured” and does not men-
tion tunnel work. Accordingly, we find that this factor
slightly favors assigning the work in dispute to employ-
ees represented by the Laborers.
2. Employer’s preference and past practice
The Employer, in accordance with its preference, and
consistent with its practice of more than 20 years, has
assigned the disputed work to its own employees repre-
sented by the Laborers. We find that the Employer’s
preference and past practice favor awarding the disputed
work to employees represented by the Laborers.
3. Area and industry practice
Employees represented by the Laborers have per-
formed the disputed work in the greater Chicago and
upper Midwest area. Employees represented by the
Ironworkers have performed the disputed work in vari-
ous locations in the United States. Accordingly, we find
that this factor does not favor an award to employees
represented by either union.
4. Relative skills
The record discloses that employees represented by the
Laborers and the Ironworkers possess the required skills
to perform the disputed work. Employees represented by
the Laborers received job specific training, including a 3-
day safety orientation and tunnel awareness class. Also,
it is undisputed that the employees represented by the
Ironworkers are skilled at performing steel rod and wire
mesh work. Accordingly, we find that this factor does
not favor an award of the disputed work to employees
represented by either Union.
5. Economy and efficiency of operations
The Employer does not employ employees represented
by the Ironworkers. Further, the disputed work is only a
small portion of the amount of the work being performed
on the jobsite and is done for short periods of time. Con-
sequently, the Employer would face additional costs by
hiring employees represented by the Ironworkers to per-
form the work in dispute while also retaining its own
employees represented by the Laborers to perform other
traditional work assignments. Accordingly, we find that
this factor favors the assignment of work to employees
represented by the Laborers.
6. Joint board determinations
The Joint Trade Board found that the Employer had
violated its contract with the Ironworkers by assigning
the disputed work to employees represented by the La-
borers and ordered the Employer to award the work in
dispute to members of the Ironworkers. The minutes of
the Joint Trade Board proceedings, however, indicate
that it was concerned only with the alleged contract vio-
lation. Except for the collective-bargaining agreement
with the Ironworkers, there is no evidence that the Joint
Trade Board considered any of the factors the Board con-
siders in making an award in a 10(K) proceeding. Ac-
cordingly, we find that the Joint Trade Board’s decision
does not favor an award of the work to either group of
employees.9
CONCLUSIONS
After considering all the relevant factors, we conclude
that employees represented by the Laborers are entitled
to perform the work in dispute. We reach this conclusion
relying on the collective-bargaining agreement, the Em-
ployer’s preference and past practice, and economy and
efficiency of operations. In making this determination,
we are awarding the work to employees represented by
the Laborers, not to that Union, or its members. The
determination is limited to the controversy that gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the following
Determination of Dispute.
Employees of Kenny Construction Company repre-
sented by Laborers International Union of North Amer-
ica, Local 81, AFL–CIO are entitled to perform the han-
dling, placement, and installation of reinforcing steel
rods and wire mesh for the construction of the tunnel and
shaft and facilities associated with the shaft and tunnel
construction at the Borman Park Tunnel Project for Indi-
ana American Water Company in Gary, Indiana.

9 J.P. Patti Co., 332 NLRB 830 (2000).